PRESIDENTIAL ADDRESS: ON THE PROFESSIONAL INTEGRITY OF OUR EXPERT WITNESSES

H. Keith Hunt, Brigham Young University

Litigation is making increased use of expert testimony in consumer behavior and consumer research. If you understand even part of what is going on in just some of the sessions at this conference, you have at least some areas in which you could be useful as an expert witness.

The purposes of my comments today are twofold: (1) to alert the inexperienced to some of the things they should consider if they are approached to be an expert witness, and (2) to encourage the experienced expert witnesses to evaluate their behavior. The novices need guidance because until very recently nobody talked much about the professional responsibility of the expert witness. A few have offered helpful tips, but these tips have been from the viewpoint of the client, not of the profession from which the expert comes. Old hands need to have their professional consciences pricked from time to time lest they become callused and insensitive to their professional responsibilities.

There is a difference between being an advocate and being an expert witness. An advocate has a point of view and uses consumer research expertise to advocate that point of view. An expert witness has no point of view regarding the matter at hand, and uses his/her expertise to explain and apply the current state of knowledge in consumer behavior and consumer research to the matter at hand. In my opinion, most so-called expert witnesses have actually been advocates -- either from the start or by midway through the proceedings. It is easy to start out without a point of view, but, as matters progress, one can become more and more involved in "winning" the case and to get more ego-involved in winning. As that happens, the professional who was an expert witness becomes an advocate. This is not to say for a moment that professional experts should not be advocates. Actually I believe just the opposite. Where we have strong points of view based on our professional expertise, I feel we have an obligation to enter the public arena to do all that we can to see that our point of view prevails. My point is simply that in such cases we should not fly the colors of the expert witness but of the expert advocate. Why? Because there is the expectation by the court and by outsiders that one who poses as an expert witness is giving "straight" testimony which is much less biased by feelings about the case than is the testimony from an advocate. The frame of reference of the expert is one of the key bits of information needed to evaluate the correctness and usefulness of the expert's testimony. When an advocate poses as an expert witness, that bit of information is masked. This is the reason most courts spend so much time questioning the witness regarding points of view and desired outcomes.

It is important that we, as professionals, recognize that the adversary process and the scholarly process are two quite different processes for arriving at truth. Each is useful and effective in its own sphere. For awhile, I was of the opinion that when playing the adversary game one should play by adversary rules, and when playing the scholarly game, one should play by scholarly rules. I now feel differently. Now I think that when you allow yourself to become an expert witness in the adversary process you have to satisfy both sets of rules. The adversary process, if played correctly, should make sure you perform according to its rules. But there is little check on whether you adhered to the standards of scholarship. You should be quite willing for a tape of your testimony to be presented here at ACR, with your scholarly reputation on the line. If you would feel uncomfortable doing that, you are probably deserting the standards of the scholarly process, prostituting those standards for the very short run benefit of "winning" a case.

Each of us seems to have a sense that we are the first to go through the expert witness experience. We are excited while it is happening. And as soon as it is completed we hurry to tell others about the special experience we have had. It helps one's perspective to remember that there have been numerous expert witnesses before us, some even in our specialty, and there will be even more numerous expert witnesses to follow us. It is somewhat similar to the boy or girl experiencing a first kiss. It is exciting as one anticipates it. It is very exciting when it is happening. And when it is completed we make it the topic of conversation whenever possible. It is as though no one had ever been kissed before, and we have had this experience on behalf of all others. While being an expert witness is not quite so common as first kisses, still, we behave about the same in both circumstances. For those who have not yet had the experience, we are the fount of knowledge. For those who have just recently had the experience, we are a bore and a threat to their own story telling. And for those who have been expert witnesses in the past, we are recounting a story which enables them to relive and relish their past as they smile slightly at our carrying on, remembering their similar behavior. Just as I would not for a moment make light of the significance of a first kiss, so I would not make light of one's expert witness experience. Still, it has been going on for a long time and will continue to go on for a long time, and our braying into the wind might be more palatable if we simply remembered that many others have also experienced our "unique" experience. Some did a better job. Some did a worse job. We need to keep our "uniqueness" in perspective.

During the expert witness experience you need to continually ask yourself these questions: Will your testimony make some of us ashamed that you are one of us? Will your testimony come back to haunt you over the years? Are you playing games with the truth, not telling the direct whole truth but not telling untruths? Are you representing the discipline well?

You can learn to be a good expert witness. How? You can study the testimony of others. Don't repeat their mistakes. Put yourself in their position and imagine yourself answering the questions. How could you have answered them better? How could you have avoided the traps? Can you even recognize the trapping attempts? You can learn how to express your opinions and explain facts, theories, and findings so the court can understand them.

Someone thinks you are an expert or you wouldn't be involved. Don't sell yourself short. This is not a time for modesty. But don't oversell yourself either. Know what you know and are willing to say you know, and know what you don't know and be willing to not say anything you are not sure of. You have to be your own self. You know what you can say with integrity. Say that and nothing else.

Never say, you aren't qualified on something inherently in your area. Say you are not totally current on that particular topic and would feel it improper to offer expert testimony without time to refresh your knowledge in that area.

In normal adversary proceedings it is the opposition's duty to try to prove that you are incompetent and/or incorrect. As a professional, it is your responsibility to the profession, especially to each of us, your peers, to be sure you never allow yourself to be in a situation where you are judged incompetent.

If you allow yourself to be deposed or be a witness, you owe it to your peers to be fully prepared. If you can't get prepared in the time allowed, don't agree to appear. If you back out at the last minute you leave a hole in the attorney's presentation. If you don't back out when unprepared, you stand to bias the judge against all witnesses on your side of the issue. If a professional says he or she will appear, that is a commitment that he or she will be fully prepared by the time agreed upon.

Don't ever delude yourself that no one will know what you say. The word spreads quickly about your testimony. There are many of us who are widely known to have expert testimony for hire. And of those for hire, a few are known as either being willing to say anything the party wants or else they prepare so poorly that they do a poor job as a witness. Once a reputation is established it is difficult to change it, especially if it is unfavorable.

Remember that your testimony is a potential piece in a mosaic the attorneys are putting together to convince the judge and/or jury. After some initial work or after the deposition, it may be the attorneys' decision that your testimony is not necessary, that it is not what needs saying, that it is detrimental to the case, or for any of many other reasons, that it should not be included in the final mosaic of the case. You should not concern yourself about that. Your concern is that you do your best and that you would be totally comfortable presenting that testimony verbatim at an ACR session for evaluation by your peers. Whether your testimony is important for the case is the lawyer's decision, not the consumer expert's decision.

There are different opinions on a variety of topics in our field. There is nothing wrong with correctly presenting your point of view, having a conflicting point of view presented by the other side, and having the judge accept the other side as correct. Your only concern is that you present your side correctly.

Be wary of invitations to give rebuttal testimony, especially when there will be no rebuttal of your rebuttal. In this situation, cheap shots are easy.

Try to work for different sides over the years. Don't become a government or industry hack. Maturity as an expert witness requires that you have worked for a variety of interests, thus becoming familiar with the varied sides and points of view.

Take it very serious while you are an expert witness. Then forget it completely. Don't savor a victory. Don't suffer in defeat. You didn't win or lose the case. The case on its merit or the attorney on his presentation and logic won or lost the case. If you were honest and ethical you were no more than a pawn or rook or knight playing out an assigned part in a correctly played game.

We are to the point where professional reputation should be affected by one's behavior when serving as an expert witness. As a group of scholars we can no longer tolerate peers who abuse our field. Decry the unprofessional testimony of others. Don't indiscriminately tell stories. But if you are certain of false testimony, make it public.

Your goal as an expert witness should be that, when the case if over, both sides will look back on your testimony as circumspect, direct, helpful, and truthful.

If you are unsure of your path of action or face a dilemma, give a call to someone you respect who has experience. Talk it out. Get your thinking straightened out.

In closing my remarks, I would like to express my gratitude to you for electing me your president. That you would accord me this honor continues to be a marvel to me. But that in no way diminishes the joy, professionally and personally, which you have brought me. As I reflect over the set of ACR presidents, I note that each has at least one particular strength, and several have many strengths. It is a high honor you have paid me to include me in that set. I suffer no delusions of grandeur. Mostly just amazement. And gratitude to you for the honor. Thank you.